Biden Administration Action: Under Study

Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure

With this notice in the Fall 2021 Unified Regulatory Agenda, DOJ announced its intention to rescind or modify the enjoined Trump administration regulations regarding finality of case disposition at both the immigration court and appellate levels.

Biden Administration Action: Proposed Revocation/Replacement/Modification

2023.09.08 Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure

This proposed rule by the Biden administration's Executive Office for Immigration Review would restore longstanding procedures in place prior to the Trump administration's AA96 Final Rule, including administrative closure of cases by Immigration Judges and the Board of Immigration Appeals, and would clarify and codify other established practices. Given the injunction in place, the proposed regulatory language largely reflects the currently operative status quo.

Biden Administration Action: Revoked/Replaced

2024.5.16 Efficient Case and Docket Management in Immigration Proceedings

This Biden Administration action finalizes the revocation of the Trump Administration action identified in this entry.

EOIR adopted the September 2023 proposed rule with the following changes:

1. To the list of factors EOIR adjudicators must consider when adjudicating administrative closure and recalendaring, the final rule adds "ICE detention status of the noncitizen"
2. The proposed rule is modified to explicitly state that EOIR adjudicators must consider the reason discretionary termination is sought and the basis for any opposition to termination when adjudicating a motion to terminate.
3. The proposed rule’s discretionary termination ground relating to cases implicating USCIS’s exercise of initial asylum jurisdiction under INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C), is modified in two ways. First, the ground was modified to apply not only to children determined by EOIR to be unaccompanied children under 8 CFR 1001.1(hh), but also to cases in which USCIS would consider their asylum application as one filed by an unaccompanied child such that USCIS would have initial jurisdiction. Second, the proposed rule was modified to require the filing of an asylum application with USCIS before an EOIR adjudicator may grant discretionary termination, to ensure that relevant noncitizens in removal proceedings have a pending application on file with USCIS before any EOIR proceedings are terminated.
4. The final rule does not finalize the discretionary termination ground that cross-references DHS provisions related to T and U visas as proposed in the proposed rule.
5. The proposed rule is modified to make clear that a motion from a party is required before an EOIR adjudicator may terminate a case in the exercise of discretion.
6. The final rule revises the provisions on discretionary termination on the basis of prima facie eligibility to naturalize. To better align with the statutory provision precluding consideration of a naturalization application where a removal proceeding is pending, with respect to this narrow category of motions for discretionary termination, the final rule precludes EOIR adjudicators from granting the motion if DHS assesses that the noncitizen should remain in EOIR proceedings given the circumstances of the particular case, and if DHS then communicates that assessment to the adjudicator by opposing a motion to terminate.
7. The final rule modifies the discretionary termination ground focusing on petitions, applications, or other actions that a noncitizen pursues with USCIS seeking relief from removal or lawful status, to include language requiring that the noncitizen has filed such application, petition, or other action before termination may be granted.
8. The final rule modifies the grounds for discretionary termination in removal, deportation, and exclusion proceedings to clarify that EOIR adjudicators may not terminate a case in the exercise of discretion for a noncitizen to pursue an asylum application before USCIS, unless the noncitizen has filed an asylum application with USCIS pursuant to section 208(b)(3)(C) of the Act, 8 U.S.C. 1158(b)(3)(C), pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh).
9. The final rule modifies 8 CFR 1240.26(k)(4) to state that the Board shall advise the noncitizen of the duty to post any voluntary departure bond with the ICE Field Office Director within 30 business days of the Board’s order granting voluntary departure.
10. The final rule non-substantively updates the “noncitizen” definition in the proposed rule to better clarify that “noncitizen” is synonymous with the statutory term “alien.”
11. The final rule adopts a provision clarifying the application of Matter of Thomas & Thompson and instructing adjudicators to recognize certain types of defects.